UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION MINOR I. DOE, through parent PARENT I.

DOE; MINOR II. DOE, through parent PARENT II. DOE, Plaintiffs, Case No.: 3:08-cv-361-MCR-EMT v. SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA; JOHN ROGERS, in his official capacity as Superintendent of the School District of Santa Rosa County, Florida; H. FRANK LAY, in his official capacity as Principal of Pace High School, Defendants. / DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT AND SUPPORTING MEMORANDUM OF LAW Defendants, SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA and JOHN ROGERS, in his official capacity as Superintendent of the School District of Santa Rosa County, Florida, (“Defendants”), by and through the undersigned counsel, and pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1), and N.D. Fla. Loc. R. 7.1, move to dismiss the Complaint filed by Plaintiffs, and in support of the relief requested, state as follows: 1. On or about August 27, 2008, Plaintiffs filed a two-count Complaint in this

Court alleging claims under 42 U.S.C. §1983 (Establishment Clause violation) (Count I) and the Florida Constitution (“No Aid” violation) (Count II). (Doc. 1). The Complaint was served upon Defendants on or about August 29, 2008.

2.

Defendants requested, and were granted, a 30 day extension of time within

which to respond to the Complaint. (Doc. 9). 3. The Complaint should be dismissed for several reasons. First, Plaintiffs Minor

I. Doe (“Doe I”) and Minor II. Doe (“Doe II”) have failed to meet their burden to plead sufficient facts to establish the “irreducible constitutional minimum of standing” for the alleged United States constitutional violations occurring at District Schools other than Pace High School, the school which they attend. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). More specifically, Plaintiffs have failed to allege that they suffered a concrete and particularized “injury in fact,” much less one that was sufficiently personal and individual to satisfy the standing requirements of Article III of the United States Constitution. See, Lujan 504 U.S. at 561 n1. Moreover, because neither Plaintiffs Doe I nor Doe II has established their standing to bring claims alleging constitutional violations at Santa Rosa County Schools other than Pace High School, they may not seek relief on their own behalf or for any other member of the class who may have suffered constitutional infringement at these other schools. See, O’Shea v. Littleton, 414 U.S. 488, 494 (1974). Because Plaintiffs have failed to establish this threshold jurisdictional prerequisite, there is no active case or controversy, and therefore this Court lacks standing to hear these claims. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); see also, Doe v. Duncanville Ind. School Dist., 70 F.3d 402, 408 (5th Cir. 1995). 4. Basic standing principles under Florida law also require that Plaintiffs’ claims

under the “No Aid” provision of the Florida Constitution be dismissed. Like their claims -2-

under the Establishment Clause, Plaintiffs cannot establish standing to assert their claims under the “No Aid” provision. As with principles of standing applicable under Federal law, under Florida law, a litigant must demonstrate that he has standing to invoke the power of a court to determine the merits of an issue. E.g., Keehn v. Joseph C. Mackey and Co., 420 So. 2d 398, 399 n.1 (Fla. 4th DCA 1982). “Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.” Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla. 1st DCA 2003) (citations omitted). 5. Accordingly, because Plaintiffs Doe I and Doe II do not have standing to

assert claims for alleged violations of the United States and Florida Constitutions, an absolute predicate to the establishment of subject matter jurisdiction, this Court lacks the authority to hear these claims, and therefore the Complaint should be dismissed. 6. Additionally, this Court should exercise its discretion and dismiss Plaintiffs’

Count II claim brought under the “No Aid” provision of the Florida Constitution. This claim raises novel and unsettled issues of state law on which Florida courts have not passed. 28 U.S.C. §1367(c)(1). Further, under the “exceptional circumstances” prong of 28 U.S.C. §1367(c)(4), and based upon principles of comity and deference to Florida courts, this issue should be decided in state court rather than in the case sub judice. MEMORANDUM OF LAW I. Applicable Standards of Review In considering a motion to dismiss, the Court “must accept the allegations set forth in -3-

the complaint as true.” Lotierzo v. A Woman’s World Med. Ctr., 278 F. 3d 1180, 1182 (11th Cir. 2002); see also, Olmstead v. Defosset, 205 F. Supp. 2d 1316, 1319 (M.D. Fla. 2002) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974)). Additionally, all reasonable inferences are to be drawn in favor of the plaintiff. Omar ex. Rel. Cannon v. Lindsey, 334 F. 3d 1246, 1247 (11th Cir. 2003) (per curiam). Notwithstanding the standard to be applied in adjudicating a motion to dismiss, the plaintiff “must still meet some minimal pleading requirements.” Rumler v. Department of Corrections, 546 F. Supp. 2d 1334, 1338 (M.D. Fla. 2008) (citing Jackson v. Bellsouth Telecomms., 372 F. 3d 1250, 1262-63 (11th Cir. 2004)). Indeed, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007). Further, to survive dismissal a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. Moreover, a district court need not accept factual claims that are internally inconsistent, facts which run counter to facts of which the court can take judicial notice, conclusory allegations, unwarranted deductions or mere legal conclusions asserted by a party. Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1492 (S.D. Fla. 1992). Nor may a plaintiff “merely ‘label’ claims to survive a motion to dismiss.” Olmstead, 205 F. Supp. 2d at 1319 (citing Blumel v. Mylander, 919 F. Supp. 423, 425 (M.D. Fla. 1996)). “When, on the basis of a dispositive issue of law, no construction of the factual allegation will support the cause of action, dismissal of the complaint is appropriate.” Id. (citing -4-

Executive 100, Inc., v. Martin County, 922 F. 2d 1536, 1538 (11th Cir. 1991), cert. denied, 502 U.S. 810, 112 S. Ct. 55 (1991)). With respect to issues of standing, to state a claim in federal court, the complaint must allege an actual case or controversy. Flast v. Cohen, 392 U.S. 83 94-101 (1968). “Plaintiffs in the federal courts ‘must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” O’Shea, 414 U.S. at 493. An abstract or hypothetical injury is simply not enough; the Plaintiff must allege an actual injury or the immediate threat of some direct injury. Id. II. Introduction and Background Facts Plaintiffs filed their two-count Complaint alleging claims against the Santa Rosa County School Board, its Superintendent, John Rogers in his official capacity, and Principal Frank Lay, in his official capacity as the Principal of Pace High School. Count I asserts District-wide violations of the First and Fourteenth Amendments; specifically that the Defendants violated the Establishment Clause of the United States Constitution. Count II asserts violations of the Florida Constitution; specifically that the Defendants violated Florida’s “No Aid” provision enumerated in Article 1, Section 3 of the Florida Constitution, which generally prohibits the use of public funds for the promotion of religion. The Complaint alleges four general categories of violations 1. 2. 3. School sponsored prayer at school events, including graduation; School sponsored baccalaureate services; School sponsored events held at places of worship where suitable -5-

School District facilities existed; and 4. Allowing staff and outsiders to proselytize to students and promote their personal religious beliefs during classes and other schoolsponsored events.

(Doc. 1, Complaint, p. 2, ¶1). More specifically, Plaintiffs allege school sponsored or approved prayer took place at the following events: • • • • • • • Central High School’s 2005, 2006, and 2008 graduation ceremonies Jay High School’s 2004, 2005, 2006, 2007, and 2008 graduation ceremonies Santa Rosa Learning Academy’s 2005,2006, and 2007 graduation ceremonies Milton High School’s 2004, 2005, 2006, 2007, and 2008 graduation ceremonies Navarre High School’s 2005, 2006, 2007, and 2008 graduation ceremonies Pace High School’s 2004, 2005, 2007, and 2008 graduation ceremonies Santa Rosa Adult School’s 2007 graduation ceremonies

(Doc. 1, Complaint, pp. 12-14, ¶¶23-30). Plaintiffs also allege the following schools held religious baccalaureate services: • • Central High School and Jay High School held school sponsored baccalaureate services in 2005, 2006, 2007, and 2008 Milton High School held a school sponsored baccalaureate service in 2008

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Pace High School held a school sponsored baccalaureate service in 2008

(Doc. 1, Complaint, pp.16-19, ¶¶40-44). Plaintiffs contend the following events were held at places of worship when suitable School District facilities were available: • Bagdad Elementary School’s 2004 fifth-grade graduation program was held at the First Assembly of God Church of Bagdad instead of Avalon Middle School 1 Central High School’s 2006 PRIDE ceremony was held at Immanuel Baptist Church in Pace instead of Central High School Holley-Navarre Middle School’s 2004, 2005, 2006, and 2007 Christmas concerts were held at Navarre United Methodist Church instead of Navarre High School Milton High School’s 2006 and 2008 football-cheerleader banquets were held at the First Baptist Church in Milton instead of Milton High School Oriole Beach Elementary School’s 2006 fifth-grade graduation was held at First Baptist Church of Gulf Breeze instead of Woodlawn Beach Middle School Pace High School’s 2008 Senior Academic Awards was held at Emmanuel Baptist Church instead of Pace High School Pea Ridge Elementary School’s 2005, 2006, 2007, and 2008 fifth grade graduations, and the school’s 2008 fifth-grade awards ceremony were held at Pace Assembly of God Church instead of Pace High School

• •

• •

1

This and other 2004 allegations fall outside of the four-year statute of limitations and are most likely time barred. However, because this defense is not readily apparent on the face of the Complaint, Defendants do not move to dismiss on this ground. -7-

(Doc. 1, Complaint, pp. 19-21, ¶¶45-52). Plaintiffs allege the following promotion of personal religious beliefs and proselytizing of students: • • • Pace High School’s teachers attend and participate in student religious organizations to include preaching to students Pace High School allows clergy members to speak to student religious groups Pace High School faculty promotes their personal religious views, assign religiously oriented school work and encourage participation in religious clubs Pace High School teacher has preached to cross-country students and other students before school Pace High School faculty and staff compose and give prayers or invite students or outside leaders to lead prayers before or during various sporting events

• •

(Doc. 1, Complaint, pp. 21-22, ¶¶53-58). Plaintiff Doe I is enrolled at Pace High School in the Santa Rosa County School District. (Doc. 1, Complaint, p. 5, ¶7). Doe 1 alleges that he 2 has attended in the past and plans to attend in the future “a number of school functions within the School District and Pace High, including Doe 1’s graduation ceremony” in which prayer was offered, including Pace High School’s 2006, 2007 and 2008 graduation ceremonies. Id. (Doc. 1, Complaint, p. 6, ¶10). Although generally asserting attendance at school events other than Pace High School, Doe 1 has not identified any other events he attended in which the Establishment

2

The identities of Plaintiffs Doe I and Doe II are unknown, and therefore the use of the -8-

Clause was allegedly violated. Plaintiff Doe II is enrolled at Pace High School in the Santa Rosa County School District. (Doc. 1, Complaint, p. 7, ¶12). Doe 2 alleges he has “attended in the past and plans to attend in the future a number of school functions within the School District and at Pace High, including Doe 2’s graduation ceremony.” Id. Doe generally asserts that he has been regularly subjected to the District’s policies, practices, and customs promoting religion. (Doc. 1, Complaint, p. 8, ¶15). Although generally asserting attendance at school events other than Pace High School, Doe II has not identified any other events he attended in which the Defendants allegedly violated the Establishment Clause. In Count II, Plaintiffs allege that Defendants violated the “No Aid” provision of the Florida Constitution because: (1) employee time has been used to plan senior baccalaureate services; and (2) School District funds have been used to print the programs used at certain baccalaureate services. (Doc. 1, Complaint at p. 28, ¶¶83-84). III. A. Argument and Authority - Bases for Dismissal Plaintiffs Lack Standing to Assert Establishment Clause Claims for Alleged Acts Occurring Outside of Pace High School Although Plaintiffs Doe I and Doe II generally assert they have attended school events other than those at Pace High School, they have not specifically alleged that they were subjected to the alleged constitutional violations at other enumerated District school events. Additionally, they have not alleged any facts to show they are at imminent risk of suffering future harm at District schools other than Pace High School. Because they have

masculine pronoun is for convenience only. -9-

not alleged personal injury traceable to the Defendants’ allegedly unlawful conduct at schools other than Pace High School and that such conduct is likely to be redressed by the instant lawsuit, they lack standing to pursue such claims. Accordingly, Plaintiffs’

Establishment Clause claims arising from conduct at District Schools other than Pace High School should be dismissed. 3 1. The Court Has Jurisdiction only when There is an Actual Case or Controversy

The authority of the United States District Courts is limited by Article III of the United States Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 470 (1982). More specifically, those who seek to invoke the jurisdiction of the federal courts “must satisfy the threshold requirement by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Plaintiffs in the federal courts must allege some threatened or actual injury resulting from the allegedly unlawful conduct before a federal court may assume jurisdiction. O’Shea v. Littleton, 414 U.S. 488, 493 (1974). A plaintiff bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Additionally, the authority of federal courts under Article III “is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College, 454 U.S. at 471. Indeed, federal courts do not have the authority to “seek

For the purposes of this motion only, Defendants concede Does I and II have standing to assert claims regarding past and future school sponsored activities at Pace High School. - 10 -

3

out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals.” Jay F. Hein ,White House Office of Faith-Based and Community Initiatives v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2562 (2007). “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Id. With respect to Establishment Clause cases specifically, the Supreme Court has refused to relax basic standing requirements. Valley Forge Christian College, 454 U.S. at 488. Inherent in these requirements is the prudential limitation that parties generally may not raise claims on behalf of third persons not before the court. Singleton v. Wulff, 428 U.S. 106, 113-114 (1976). This limitation is based upon two overarching principles: first, that “courts should not adjudicate such rights unnecessarily;” and, second, that the actual parties in interest are the most effective advocates of their own rights. Id. 2. Plaintiffs Have Not Alleged A Cognizable Personal Injury Regarding Their Allegations Other than Those at Pace High School, and Therefore There is No Actual Case or Controversy arising from those Claims

A plaintiff establishes a case or controversy for Article III standing purposes where he has suffered an “injury in fact,” an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560. This requirement is satisfied where the injury affects the plaintiff in a personal and individual way. Id. at 561 n 1. Simply stated, abstract injury is insufficient.

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“It must be alleged that the plaintiff ‘has or is immediately in danger of sustaining some direct injury as a result of the challenged…official conduct.” O’Shea, 414 U.S. at 494; see also, Valley Forge Christian College, 454 U.S. at 472 (stating that to establish standing, a plaintiff must show that he has personally suffered “some actual or threatened injury.”). Although, at this early stage in the litigation, the court may “presume that general allegations embrace those specific facts that are necessary to support the claim, the plaintiff must make general factual allegations of injury.” Id. at 561. As the Supreme Court noted in Lujan: [The elements establishing standing] are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. Although the Plaintiffs’ burden is slight, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). Further, to survive dismissal a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. Plaintiffs have failed to meet their burden in this regard. More specifically, Plaintiffs have asserted more than forty (40) incidents of alleged violations of the Establishment Clause occurring at District Schools other than Pace High School. Yet, there is not a single factual allegation suggesting Doe I or II attended or were exposed to any of these alleged violations, or that they would be exposed to them in the future. Plaintiffs’ general statements that they attended some school events occurring at

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schools other than Pace High School, requires the Defendant and this Court to speculate as to whether they suffered an “injury in fact” regarding these other school events, and therefore Plaintiffs have failed to meet their pleading burden. See, O’Shea, 414 U.S. at 494 (plaintiffs must allege they have suffered or are in immediate danger of suffering some direct injury as a result of the challenged conduct). The Complaint is silent as to any personal involvement of the Plaintiffs, much less direct injury or threat thereof, as a result of the alleged practices at District Schools other than Pace High School. Their failure to allege facts setting forth their personal involvement with respect to these alleged violations renders their Complaint deficient and subject to dismissal. 3. Plaintiffs Have Not Alleged A Cognizable Personal Injury Regarding Their Allegations Other than Those at Pace High School, and Therefore They May Not Seek Relief on Behalf of Those Who May Have Suffered an Actual Injury

Plaintiffs’ failure to allege an actual injury and resultant failure to establish a case or controversy regarding alleged constitutional violations at District Schools other than Pace High School also precludes them from seeking relief on behalf of a class of persons who may have suffered an actual injury. O’Shea, 414 U.S. at 494. “[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class. Id. Accordingly, Plaintiffs may not salvage their claims by contending they represent a class of persons who allegedly suffered constitutional injury because they personally did not allege an individual injury. - 13 -

B.

Plaintiffs Lack Standing to Assert Claims Under the “No Aid” Provision of the Florida Constitution for Alleged Acts Occurring Outside of Pace High School Plaintiffs’ supplemental state law claim under the “No Aid” provision of the Florida

Constitution – Article I, Section 3 – also fails for the same reason. 4 As with principles of standing applicable under Federal law, under Florida law, a litigant must demonstrate that he has standing to invoke the power of a court to determine the merits of an issue. E.g., Keehn v. Joseph C. Mackey and Co., 420 So. 2d 398, 399 n.1 (Fla. 4th DCA 1982). “Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.” Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla. 1st DCA 2003) (citations omitted). “The interest cannot be conjectural or merely hypothetical.” Id. (citation omitted). Additionally, “the claim should be brought by, or on behalf of, the real party in interest.” Id. (citing Kumar Corporation v. Nopal Lines Ltd., 462 So. 2d 1178 (Fla. 3d DCA), rev. denied, 476 So. 2d 675 (Fla. 1985). Further, where, as here, a declaratory judgment is sought, principles of standing require that before declaratory relief is provided, “all persons who have an ‘actual, present, adverse and antagonistic interest in the subject matter’ should be before the court.” Fla. Dept. of Education v. Glasser, 622 So. 2d 944, 948 (Fla. 1993) (quoting May v. Holley, 59 So. 2d 636, 639 (Fla. 1952)). Here, Plaintiffs are not the “real parties in interest” to pursue alleged violations of the ”No Aid” provision of the Florida Constitution allegedly occurring at schools other than

4 Should this Court decline supplemental jurisdiction over Plaintiffs’ “No Aid” claim [(See,

Argument III(C)], infra, then any analysis of standing with respect to this claim is obviously - 14 -

Pace High School. Their interests, if any, with respect to activities occurring at other schools within the Santa Rosa County School District are grounded in conjecture and speculation and are, at best, hypothetical. Because there is no jusiticiable controversy between the parties with respect to events occurring outside of the school actually attended by Plaintiffs, their “No Aid” claims also fail for want of standing. C. The Court Should Decline Supplemental Jurisdiction over Plaintiffs’ State Constitutional Claim and Dismiss Count II The grounds for a federal court exercising supplemental jurisdiction over a state law claim are codified in 28 U.S.C. §1367. Section 1367(a) provides, in pertinent part: “Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §1367(a). The factors that are applied in determining whether a federal court should decline supplemental jurisdiction were enumerated in United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966). These factors are now codified at 28 U.S.C. § 1367(c). The principles announced in Gibbs are still utilized by courts in determining whether to exercise supplemental jurisdiction under 1367(c). See, e.g., Palmer v. Hospital Authority of Randolph Cty., 22 F.3d 1559, 1569 (11th Cir. 1994) (noting a federal district court’s discretion not to exercise supplemental jurisdiction was originally articulated in Gibbs).

moot. - 15 -

In Gibbs, the Supreme Court explained that pendent (now supplemental) jurisdiction is a “doctrine of discretion, not of plaintiff’s right,” and that a federal court should hesitate to exercise jurisdiction over state law claims based on the considerations of “judicial economy, convenience and fairness to litigants.” Id. at 726. The Court also noted that “needless decisions of state law” should be avoided both as a matter of comity and to secure a definitive reading of applicable law, thereby promoting justice between the parties. Id. Finally, the Court determined that if a state law claim “substantially predominates” or constitutes the “real body of a case,” the state claim may be fairly dismissed without prejudice and left for resolution by state courts. Id. at 727. Subsection (c) of 28 U.S.C. § 1367 provides four grounds upon which a district court may decline to exercise supplemental jurisdiction: (1) if the state claim raises a “novel or complex issue of State law;” (2) if the state claim “substantially predominates over” the claim over which the Court has original jurisdiction; (3) if the district court has dismissed all claims over which it has original jurisdiction; or (4) in “exceptional circumstances,” where “there are other compelling reasons for declining jurisdiction.” 28 U.S.C. §1367(c)(1)-(4).5

5 Inasmuch as Plaintiffs’ federal law claims under the Establishment Clause have not been

dismissed with prejudice, §1367(c)(3) is not applicable here. Further, it would appear that the second factor under 28U.S.C. §1367(c) is also not implicated. - 16 -

1.

Plaintiffs’ “No Aid” Claim Involves Novel or Complex Issues of State Law – 28 U.S.C. §1367(c)(1)

28 U.S.C §1367(c)(1) gives a district court discretion to dismiss a claim supported by supplemental jurisdiction if the claim raises a novel or complex issue of state law. E.g., Baggs v. City of S. Pasadena, 1994 WL 371389 at *2 (M.D. Fla. 1994) (declining supplemental jurisdiction over state law claim, holding that it involved a novel issue of state law). Courts have declined supplemental jurisdiction pursuant to subsection (c)(1) in cases where state law in the area is unsettled or the state law issue is one of first impression, including those in which a district court determines that construction of a state constitutional provision is best left to a state court. See, Weissinger v. White, 733 F.2d 802, 807 (11th Cir. 1994). In Weissinger, the Eleventh Circuit Court of Appeals affirmed the decision of an Alabama federal district court declining supplemental jurisdiction over the issue of whether an Alabama taxing statute violated the Alabama Constitution. Id. In so doing, the court found that: Resolution of the appellants’ second cause of action would have required the district court to construe Alabama law. While clothed with this license, the district court in this case determined that the validity of a taxing statute under the Alabama Constitution is a matter best left to that state’s own courts. This exercise of discretion by the district court was entirely proper and did not constitute an abuse of discretion. Id. (citing Williams v. Bennett, 689 F. 2d 1370, 1379-80 (11th Cir. 1982), cert. denied, 464 U.S. 932 (1983)). Plaintiff’s claim under the “No Aid” provision is precisely the type of claim that calls for the exercise of discretion pursuant to 28 U.S.C. §1367(c)(1). Plaintiffs may argue the - 17 -

alleged practices are part of an overall preference for a particular religious sect or for advancing religion generally, thereby militating in favor of hearing their federal and state constitutional claims in a single action. However, because the question of whether the alleged practices violate Florida’s “No Aid” provision has never been decided by a Florida court, this Court is respectfully urged to exercise its discretion and decline supplemental jurisdiction over this claim. These issues of first impression should be decided by Florida courts because they are issues of public importance requiring construction of Article I, Section 3 of the Florida Constitution. Any convenience associated with the litigation of both claims in this action is outweighed by the principles of comity and deference to state court decisions embodied in 28 U.S.C. §1367(c)(1) and discussed in Gibbs. The decisions of several district courts and the Ninth Circuit Court of Appeals are instructive. In LaJoie v. Connecticut State Bd. of Labor Relations, 837 F. Supp 34 (D. Conn. 1993), a group of deputy sheriffs brought an action challenging a Connecticut state statute that prevented them from forming a labor union and to recover for violation of civil rights under various federal statutes. Id. at 37. The district court declined to exercise jurisdiction over the state law claim directed to the issue of whether the state could be compelled to pay for substitute counsel upon withdrawing from representation of public officials sued in their individual capacity. The court found that this claim raised a novel or complex issue of state law. Id. at 38. Importantly, the plaintiffs in LaJoie did not bring to the court’s attention, nor was the court able to find, any decision of a Connecticut court squarely addressing the state law issues. Id. The court found that this “hotly contested state law issue,” which implicates - 18 -

“vital issues of state policy” appeared to lack any state precedent or direction. Id. As a result, the court held that resolution of this state law question would be, at best, a prediction of subsequent state law developments, and therefore declined to exercise jurisdiction over the claim. Id. Similarly, in Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, 799 F. Supp. 272 (N.D.N.Y. 1992), the district court refused to exercise supplemental jurisdiction over state law claims notwithstanding the fact that the federal claims arose out of the same set of operative facts and would have involved the same proof at trial. Id. at 280. Invoking its discretion under 28 U.S.C. §1367(c)(1), the court declined to exercise supplemental jurisdiction over all of the state law claims, finding that there was no reason for it to “embroil itself in a dispute” and make a novel and “potentially extremely significant interpretation of state law.” Id. The court rejected the plaintiffs’ argument that supplemental jurisdiction should be retained in the interests of judicial economy, noting that “the judicial economy factor should not be the controlling factor.” Id. (quoting Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 564 (2d Cir.), cert. denied, 501 U.S. 1218 (1991)). Additionally, in reaching its decision, the court found that a district court should “refrain from reaching out for…issues, thereby depriving state courts of opportunities to develop and apply state law.” Id. Borges v. City of West Palm Beach, 858 F. Supp. 174 (S.D. Fla. 1993) is also instructive. There, the court declined to exercise supplemental jurisdiction over state law claims pertaining to the publication of an arrest because it raised a novel issue of Florida - 19 -

state law. Id. at 177. The plaintiff in Borges relied upon a particular case which itself appeared to be unique. Id. The court held that whether and how the case on which the plaintiff relied would be extended to the facts at bar was a novel issue of state law best decided by a state court. Id. According to the court, the various legal and policy considerations at issue (powers and immunities of municipal governments and privacy rights of citizens under state law) are “precisely those that 1367(c)(1) allows the district court to decline to adjudicate.” Id. The court also noted that the benefits of a consolidated case were outweighed by “considerations of submitting unique and novel claims…to state court determination.” Id. A Ninth Circuit case is factually analogous. In Harris v. Joint School District No. 241, 41 F.3d 447 (9th Cir. 1994), a group of students challenged the constitutionality of the inclusion of prayer in an annual high school graduation ceremony. The students claimed that the prayers violated the Establishment Clause as well as the “Religion Clauses” contained in the Idaho State Constitution, which contains a similar “No-Aid” provision as the Florida Constitution [Article IX, section 5 of the Idaho Constitution]. Id. at 448. The Ninth Circuit held that the importance of the state constitutional issues raised made it appropriate for those issues to be resolved by the courts of the State of Idaho. Id. Relying on 28 U.S.C §1367(c)(1) and (3), the court determined that whether graduation prayers violate the Idaho Constitution is a “novel and complex issue of first impression.” Id. Additionally, the court found that because the state constitutional provisions at issue did not resemble those found in the First Amendment, dismissal of the state law claims was not an abuse of discretion. Id.; - 20 -

see also, O’Connor v. State of Nevada, 27 F.3d 357, 363 (9th Cir. 1994) (finding that construction of Nevada Constitution was the type of novel state law issue justifying the denial of supplemental jurisdiction). While Florida courts have decided cases involving the “No-Aid” provision, the issue of whether the use of employee time to plan a school baccalaureate program violates the “No Aid” provision has not been decided in any reported case of which Defendants are aware. 6 Similarly, the issue of whether expenditure of public funds for printing programs for these kinds of events violates the “No Aid” provision has also not been adjudicated in any reported decision. Simply put, whether the de minimus costs associated with these alleged expenditures rises to the level of constitutional concern under Article I, Section 3 of the Florida Constitution raises unsettled and undecided questions of state law, and is a dispute best left to Florida Courts to decide. LaJoie, 837 F. Supp. at 38; see also, Baggett v. First Ntl. Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997) (“Resolution of Plaintiffs’ state law claims depends on determinations of state law. State courts, not federal courts, should be the final arbiters of state law.”).

6 Reported decisions from Florida courts interpreting the “No Aid” provision include: Bush

v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004); Bush v. Holmes, 919 So. 2d 392 (Fla. 2006); Johnson v. Presbyterian Homes of the Synod of Fla., Inc., 239 So. 2d 256 (Fla. 1970); Koerner v. Borck, 100 So. 2d 398 (Fla. 1958); Nohrr v. Brevard County Educ. Facilities Auth., 247 So. 2d 304 (Fla. 1971); Rice v. Florida, 754 So. 2d 881 (Fla. 5th DCA 2000); Southside Estates Baptist Church v. Board of Trs., 115 So. 2d 697 (Fla. 1959);. Floridians Against Expanded Gambling v. Floridians for a Level Playing Field, 945 So. 2d 553 (Fla. 5th DCA 2006); and City of Boca Raton v. Gidman, 440 So. 2d 1277 (Fla. 1983).

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Even though this Court is “clothed with [the] license” to adjudicate Plaintiff’s “No Aid” claim [Weissinger, 733 F.2d at 807], as the district court found in Support Ministries, supra, there is no reason for the court to “embroil itself in a dispute” and make a novel and “potentially extremely significant interpretation of state law” when Florida courts have not decided the issues presented in Count II. Support Ministries, 799 F. Supp. at 280. To do otherwise would deprive Florida courts the opportunity to interpret and develop the law as it relates to the scope of the “No Aid” provision. Id. Accordingly, Count II of the Complaint should be dismissed without prejudice. 2. The “Exceptional Circumstances” Prong of 28 U.S.C. §1367(c)(4) also Provides Grounds for Dismissing Count II

The final ground in 28 U.S.C. §1367(c) is a catchall provision which permits a district court to decline to exercise supplemental jurisdiction “in exceptional circumstances” where there are “other compelling reasons for declining jurisdiction.” 28 U.S.C. 1367(c)(4). In addition to issues involving the interpretation of novel or complex issues of state law, federal courts have declined supplemental jurisdiction under subsection (c)(4) based upon principles of comity and where the subject of a pending state court proceeding and over claims that would require the federal court’s intrusion on the operation of local government. E.g., Polaris Pool Sys. v. Letro Prods. Inc., 161 F.R.D. 422, 425 (C.D. Cal. 1995) (pending state court action); Women Prisoners of D.C. Correct. V. Dist. Of Columbia, 93 F. 3d 910, 923 (D.C. Cir. 1996) (order for relief involved judicial micromanagement of prison system).

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As with the arguments set forth above regarding the applicability of subsection (c)(1), principles of comity and deference militate in favor of allowing Florida courts to determine the scope of the “No Aid” provision as applied to the facts alleged in the Complaint. Gibbs, 383 U.S. at 726 (“Needless decisions of state law should be avoided both as a matter of comity and to promote justice to the parties, by procuring for them a surer-footed reading of applicable law.”). Any decision rendered by this Court with respect to the issues of first impression contained in Count II could conflict with or be supplanted by a Florida court ruling on the same issue. Denying supplemental jurisdiction over the “No-Aid” violation claim would allow the Florida courts to resolve the issue in the first place, and, therefore, promote judicial economy. LaJoie, 837 F. Supp. at 38. WHEREFORE, for the reasons more fully set forth above, Defendants Santa Rosa County School Board and John Rogers in his official capacity as the Superintendent of Schools, hereby request this Court dismiss Plaintiffs’ Complaint because they lack standing to bring the claims as pled under the United States and Florida Constitutions. Further, Defendants request that this Court decline supplemental jurisdiction over Plaintiffs’ claim under Count II of the Complaint and dismiss such claim. Dated this 20th day of October, 2008.

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Respectfully submitted, /s/ Robert J. Sniffen ROBERT J. SNIFFEN Florida Bar Number: 0000795 SNIFFEN LAW FIRM, P.A. 211 East Call Street Tallahassee, Florida 32301 E-mail address: rsniffen@sniffenlaw.com Telephone: (850) 205-1996 Facsimile: (850) 205-3004 /s/ J. David Marsey J. DAVID MARSEY Florida Bar Number: 0010212 SNIFFEN LAW FIRM, P.A. 211 East Call Street Tallahassee, Florida 32301 E-mail address: dmarsey@sniffenlaw.com Telephone: (850) 205-1996 Facsimile: (850) 205-3004 /s/ Terry J. Harmon TERRY J. HARMON Florida Bar Number: 0029001 SNIFFEN LAW FIRM, P.A. 211 East Call Street Tallahassee, Florida 32301 E-mail address: tharmon@sniffenlaw.com Telephone: (850) 205-1996 Facsimile: (850) 205-3004 and /s/ Paul Green PAUL GREEN Florida Bar No.: 127448 JOHNSON, GREEN and MILLER, P.A. 6850 Caroline Street Milton, FL 32570 E-Mail Address: paulg1229@bellsouth.net Telephone: (850) 623-3841 Facsimile: (850) 623-3555 COUNSEL FOR DEFENDANTS SCHOOL BOARD OF SANTA ROSA COUNTY, FLORIDA and JOHN ROGERS, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE SCHOOL DISTRICT OF SANTA ROSA COUNTY, FLORIDA

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of October, 2008, I electronically filed Defendant’s Motion to Dismiss Plaintiffs’ Complaint and Supporting Memorandum of Law, in the United States District Court for the Northern District of Florida, Tallahassee Division, by using the CM/ECF system which will send a notice of electronic filing to the following counsel of record: Counsel For Plaintiffs: Benjamin James Stevenson American Civil Liberties Union Foundation of Florida Post Office Box 12723 Pensacola, Florida 32591-2723 Glenn M. Katon American Civil Liberties Union Foundation of Florida Post Office Box 18245 Tampa, Florida 33679 Randall C. Marshall Maria Kayanan American Civil Liberties Union Foundation of Florida 4500 Biscayne Boulevard, Suite 340 Miami, Florida 33137 Daniel Mach Heather L. Weaver ACLU Program on Freedom of Religion and Belief 915 15th Street, NW Washington, DC 20005 Co-Counsel for Defendants Santa Rosa County School Board and John Rogers: Paul Green Johnson, Green and Miller, P.A. 6850 Caroline Street Milton, FL 32570 Counsel for Defendant H. Frank Lay: Christopher Barkas Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301

/s/ J. David Marsey J. DAVID MARSEY

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